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Privy Council Appeal No. 99 of 2002
(1) Lennox Ricardo Boyce and(2) Jeffrey Joseph Appellants
v.The Queen Respondent
FROM
THE COURT OF APPEAL OF BARBADOS
---------------
JUDGMENT OF THE LORDS OF THE JUDICIALCOMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th July 2004------------------
Present at the hearing:-
Lord Bingham of CornhillLord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of FoscoteLord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Mr. Justice Edward Zacca[Majority judgment delivered byLord Hoffmann]
------------------
Summary
1. The issue in these appeals is the
constitutionality of the mandatory death
penalty in Barbados. The relevant provisions
of the constitution are sections 1, 15(1) and
26. Section 1 says that the constitution
shall be the supreme law of Barbados and that
any other law shall to the extent of the
inconsistency, be void. Section 15(1) says
that no person shall be subject to an
inhuman or degrading punishment. But section
26 says that no existing law shall be held
to be inconsistent with or in contraventionof any provision of sections 12 to 23. The
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law decreeing the mandatory death penalty was
an existing law at the time when the
constitution came into force and therefore,
whether or not it is an inhuman or degrading
punishment, it cannot be held inconsistent
with section 15(1). It follows that despitesection 1, it remains valid.
2. The language and purpose of section 26 are
so clear that whatever may be their
Lordships views about the morality or
efficacy of the death penalty, they are bound
as a court of law to give effect to it. As
Lord Bingham of Cornhill said in Reyes v The
Queen [2002] 2 AC 235, 246, The court has nolicence to read its own predilections andmoral values into the constitution. And
their Lordships do not understand Mr Starmer
QC, who ably represented the appellants, to
dispute that if one simply reads the
constitution, there is no basis for holding
the mandatory death penalty invalid for lack
of consistency with section 15(1).
3. This is a very important point. It is notsuggested that there is any ambiguity about
the constitution itself. It is accepted that
it is simply not susceptible to a
construction, however enlightened or forward-
looking, which would enable one to say that
section 26 was merely a transitional
provision which somehow and at some point in
time had become spent. It stands there
protecting the validity of existing lawsuntil such time as Parliament decides to
change them.
4. Recognising this difficulty, Mr Starmers
main argument is that a provision in the
United Kingdom order in council which brought
the constitution into effect but did not form
part of the constitution itself requires the
existing law so far as possible to be
modified to conform to section 15(1) and that
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such conformity can be achieved by deeming
the death penalty to be discretionary.
5. For reasons upon which their Lordships
will expand at greater length, they regard
this argument as completely untenable. It isincompatible with the status of the
constitution as the supreme law of Barbados,
arbitrary to the point of absurdity in its
results and would have been ultra vires the
statutory powers under which the order in
council was made. It follows that it must be
rejected.
6. The result is that although the existence
of the mandatory death penalty will not be
consistent with a current interpretation of
section 15(1), it is prevented by section 26
from being unconstitutional. It will likewise
not be consistent with the current
interpretation of various human rights
treaties to which Barbados is a party. Their
Lordships have anxiously considered whether
there is some possible construction of the
constitution which would avoid these resultsand have concluded that none exists. Their
Lordships naturally respect the views of the
minority who see more merit in Mr Starmers
argument but since their opinion does not
deal with the objections which their
Lordships regard as insuperable, they remain
unpersuaded. It follows that the decision as
to whether to abolish the mandatory death
penalty must be, as the constitution intendedit to be, a matter for the Parliament of
Barbados.
The appeals
7. On 2 February 2001 in the Supreme Court of
Barbados, Lennox Boyce and Jeffrey Joseph
were convicted of the murder of Marquelle
Hippolyte and sentenced to death. On 27 March
2002 the Court of Appeal of Barbadosdismissed their appeals against conviction
and sentence They appeal to Her Majesty in
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Council against sentence only. The only
ground of appeal is that the judge wrongly
thought that the sentence of death was
mandatory.
The mandatory death penalty.8. Since the island of Barbados was colonised
by the English in the seventeenth century,
death has been the mandatory sentence for the
crime of murder. That was the common law of
England and it became the law of Barbados. In
the nineteenth century it was codified in
English statutes dealing with offences
against the person: see section 3 of the
Offences Against the Person Act 1828 (9 Geo.4 c.31) and section 1 of the Offences Against
the Person Act 1861. Each of these statutes
was followed a few years later by a similar
statute in Barbados. Section 2 of the
Barbados Offences Against the Person Act 1868
provided, as section 1 of the English Act of
1861 had done, whosoever shall be convicted
of murder shall suffer death as a felon.
9. In the United Kingdom the death penalty
was confined by Part II of the Homicide Act
1957 to certain kinds of murder which the Act
designated capital. The Murder (Abolition
of Death Penalty) Act 1965 abolished
altogether its imposition for murder and
section 1 of the Offences Against the Person
Act 1861 was repealed. But no similar
legislation was enacted in Barbados and the
old law remained in force when Barbadosbecame independent on 30 November 1966. Since
then, section 2 of the 1868 Act has been
replaced by section 2 of the Offences Against
the Person Act 1994: Any person convicted of
murder shall be sentenced to, and suffer,
death.
The Constitution.
10.When Barbados became independent, it
adopted a written constitution. TheConstitution was made by the representatives
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of the people of Barbados gathered at a
conference in London. It derived formal
legitimacy from an Order in Council made
under powers conferred by the Barbados
Independence Act 1966, passed by the
Parliament of the United Kingdom, theoutgoing sovereign power in the Island. But
once the Constitution had come into effect,
its British origins became no more than a
matter of historical interest. The
Constitution became and remained the supreme
law of Barbados because it was accepted by
the people of Barbados as the instrument
which they had chosen to regulate their
government and society.
11.Section 1 declared the constitution to be
the supreme law of Barbados:
If any other law is inconsistent with
this Constitution, this Constitution
shall prevail and the other law shall, to
the extent of the inconsistency, be
void.
12.Chapter V established a Parliament
(consisting of Her Majesty, a Senate and an
House of Assembly) with power to make laws
for the peace, order and good government of
Barbados. These included the power to alter
the Constitution, provided that Parliament
complied with certain conditions in section
49 which were intended to make constitutional
amendments more difficult to pass than
ordinary legislation. No law could amend theconstitution unless it expressly said that it
was intended to do so (subsection (6)). Any
amendment had, at the least, to be supported
by a majority of all members of each House
(not merely a majority of those who voted)
and certain specified provisions in the
Constitution were so entrenched as to require
an amendment to have the support of not less
than two-thirds of the members of each House:subsection (2).
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13.Among the entrenched provisions was
Chapter III, headed Protection of
Fundamental Rights and Freedoms of the
Individual. This chapter began (in section
11) with a declaration that every person in
Barbados is entitled to the fundamentalrights and freedoms of the individual
including life, liberty and security of the
person and a list of other human rights
familiar from international human rights
instruments starting with the Universal
Declaration of Human Rights adopted by the
General Assembly of the United Nations in
1948. Section 11 went on to say that the
following provisions of Chapter III were to
have effect for affording protection to
those rights and freedoms.
14.Sections 12 to 23 then set out in detail
the extent of the protection which the
Constitution afforded to the specified rights
and freedoms, together with limitations
designed to ensure that the enjoyment of the
said rights and freedoms by any individual
does not prejudice the rights and freedoms ofothers or the public interest. The drafting
of these sections was strongly influenced by
the terms of the European Convention on Human
Rights. So, for example, section 12(1) of the
Constitution (No person shall be deprived of
life intentionally save in execution of the
sentence of a court in respect of a criminal
offence under the law of Barbados of which he
has been convicted) is obviously derivedfrom Article 2 of the Convention. Likewise,
section 15(1) (no person shall be subject to
torture or to inhuman or degrading punishment
or other treatment) is much the same as
Article 3.
15.The European Convention had in fact
applied to Barbados while it was a colony. In
1953 the United Kingdom government made a
declaration pursuant to the Convention,
extending its application to Barbados and
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other colonies. So it was perhaps natural
that similar phraseology should be used in
Chapter III of the Constitution. But the
effect of having it in the Constitution was
of course very different. The Convention
bound the United Kingdom, in respect of itsgovernment of Barbados, only as a matter of
international law. But Chapter III of the
Constitution was part of the supreme law of
Barbados. The rights which it protected took
priority over all other laws.
International law
16.Besides entrenching fundamental rights in
its Constitution, the new state of Barbadosalso acceded to international human rights
treaties. In 1967 it became a member of the
Organisation of American States (OAS).
Membership involves adherence to the OAS
Charter, which includes an obligation in very
general terms to respect the fundamental
rights of the individual. These were
elaborated in 1948 by the American
Declaration of the Rights and Duties of Man,
similar in its terms to the Universal
Declaration. Article I provides that Every
human being has the right to life, liberty
and the security of his person. The Inter-
American Commission on Human Rights, an organ
of the OAS, has expressed the view that all
member states are bound by the American
Declaration.
17.In 1973 Barbados acceded to the
International Covenant on Civil and PoliticalRights (ICCPR). It has origins in common with
the European Convention, as may be seen from
Articles 6(1) and 7:
6(1) Every human being has the
inherent right to life. This right shall
be protected by law. No one shall be
arbitrarily deprived of his life.
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7. No one shall be subject to torture or
to cruel, inhuman or degrading treatment
or punishment.
18.In 1978 the American Convention on Human
Rights (ACHR) came into force. Article 4(Right to Life) deals with the death penalty
in greater detail than the earlier
instruments:
1. Every person has the right to have
his life respected. This right shall be
protected by law No one shall be
arbitrarily deprived of his life.
2. In countries that have not abolishedthe death penalty, it may be imposed only
for the most serious crimes
6. Every person condemned to death shall
have the right to apply for amnesty,
pardon or commutation of sentence, which
may be granted in all cases.
19.Barbados ratified the ACHR in 1982. The
organ which interprets the treaty is the
Inter-American Court of Human Rights and in
2000 Barbados accepted its compulsory
jurisdiction.
20.At the times when Barbados adhered to
these treaties, it is unlikely that many
people would have thought that the mandatory
death penalty for murder involved a breach of
any of their obligations. The ACHR, forexample, expressly contemplated the continued
application of the death penalty in those
countries which imposed it for the most
serious crimes. The notion that the
objectionable element lay in it being
mandatory for all cases of murder only gained
currency as a result of the decisions of the
United States Supreme Court in Woodson v
North Carolina (1976) 428 US 280 and Roberts vLouisiana(1977) 431 US 633.
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21.The objection to the mandatory death penalty is that acts
which fall within the definition of murder (particularly when
extended by the murder/felony rule) vary widely in moral
reprehensibility. The government of Barbados has always accepted
that the execution of everyone convicted of murder would beunacceptably harsh and undiscriminating in
fact, cruel and inhuman. But the government
argues that the provisions for the
application of the death penalty must be
considered as a whole and that they include
the power of the Governor-General, on the
advice of the Barbados Privy Council, to
commute the death sentence in any case in
which it is thought appropriate to do so. TheConstitution codifies and institutionalises
the exercise of the royal prerogative of
mercy which was exercised on the advice of
the Home Secretary when the death penalty
existed in England. The government says that
when one takes these powers into account and
examines the operation of the death penalty
in practice, it is not rigidly or arbitrarily
applied. It argues that the mandatory
sentence enables the law to achieve maximumdeterrence while the power of commutation
provides the necessary flexibility and
humanity in its practical application.
22.These arguments have not so far been
accepted by the interpretative organs
established under the international treaties
to which Barbados is a party. Edwards v The
Bahamas (2001) Report No. 48/01 the Inter-AmericanCommission decided that the mandatory death
penalty for murder was inconsistent with the
American Declaration of Human Rights. In
Hilaire, Constantine and Benjamin (2002) (Ser.C)
No. 94 the Inter-American Court of HumanRights decided that it was inconsistent with
the American Convention on Human Rights. And
in Kennedy v Trinidad and Tobago (2002)
CCPR/C/67/D/845/1999 the Human Rights Committee
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of the United Nations decided that it was
inconsistent with the ICCPR.
23.The reason for the rejection of arguments
similar to those put forward by the
government of Barbados was recentlysummarised by the Board in Reyes v The Queen
[2002] 2 AC 235, 257, an appeal from Belize:
The Board is mindful of the
constitutional provisions governing the
exercise of mercy by the Governor General
But it is not a sentencing function and
the Advisory Council is not an
independent and impartial court The
administration of justice involves thedetermination of what punishment a
transgressor deserves, the fixing of the
appropriate sentence for the crime. The
grant of mercy involves the determination
that a transgressor need not suffer the
punishment he deserves, that the
appropriate sentence may for some reason
be remitted. The former is a judicial,
the latter an executive, responsibility.It has been repeatedly held that not only
determination of guilt but also
determination of the appropriate measure
of punishment are judicial not executive
functions . The opportunity to seek
mercy from a body such as the Advisory
Council cannot cure a constitutional
defect in the sentencing process.
24. In Reyes the Board applied this reasoningto the mandatory death penalty under the law
of Belize and held that it was inconsistent
with section 7 of the Constitution, which is
in terms identical with section 15(1) of the
Constitution of Barbados. At the time when
the Belize constitution was adopted, few
people thought that the mandatory death
penalty was inconsistent with section 7, any
more than the people of Barbados thought thatit was inconsistent with section 15(1). But,
f t hi h th i L d hi ill
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return in greater detail in a moment, changes
in society and attitudes are capable of
bringing about changes in the practical
content of fundamental rights like the
protection against cruel and unusual
punishments in both international anddomestic law.
25. The government of Barbados is still in
dispute with the Inter-American Commission on
the point (there is to be a reference to the
Inter-American Court of Human Rights), but
their Lordships feel bound to approach this
appeal in the footing that the mandatory
death penalty is inconsistent with the
international obligations of Barbados under
the various instruments to which reference
has been made. This does not of course have
any direct effect upon the domestic law of
Barbados. The rights of the people of
Barbados in domestic law derive solely from
the Constitution. But international law can
have a significant influence upon the
interpretation of the Constitution because of
the well established principle that thecourts will so far as possible construe
domestic law so as to avoid creating a breach
of the States international obligations. So
far as possible means that if the
legislation is ambiguous (in the sense that
it is capable of a meaning which either
conforms to or conflicts with the [treaty]:
see Lord Bridge of Harwich in R v Home
Secretary, ex parte Brind[1991] 1 AC 696, 747) thecourt will, other things being equal, choose
the meaning which accords with the
obligations imposed by the treaty.
26.This principle is obviously at its
strongest when it appears that the domestic
law was passed to give effect to an
international obligation or may otherwise be
assumed to have been drafted with the treaty
in mind. Its application to laws which
existed before the treaty is more difficult
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to justify as an exercise in construction but
their Lordships are willing to proceed on the
hypothesis that the principle requires one to
construe the constitution and other
contemporary legislation in the light of
treaties which the government afterwardsconcluded.
Fundamental rights in Barbados
27.If their Lordships were called upon to
construe section 15(1) of the Constitution,
they would be of opinion that it was
inconsistent with a mandatory death penalty
for murder. The reasoning of the Board in
Reyes v The Queen [2002] 2 AC 235, which was in turnheavily influenced by developments in international human rights
law and the jurisprudence of a number of other countries, including
states in the Caribbean, is applicable and compelling. But since this
conclusion would almost certainly have come as a surprise to the
framers of the Constitution, it is perhaps worth dwelling for a
moment upon why it is nevertheless the correct interpretation of the
subsection.
28.Parts of the Constitution, and inparticular the fundamental rights provisions
of Chapter III, are expressed in general and
abstract terms which invite the participation
of the judiciary in giving them sufficient
flesh to answer concrete questions. The
framers of the Constitution would have been
aware that they were invoking concepts of
liberty such as free speech, fair trials and
freedom from cruel punishments which went
back to the Enlightenment and beyond. Andthey would have been aware that sometimes the
practical expression of these concepts - what
limits on free speech are acceptable, what
counts as a fair trial, what is a cruel
punishment - had been different in the past
and might again be different in the future.
But whether they entertained these thoughts
or not, the terms in which these provisions
of the Constitution are expressed necessarilyco-opts future generations of judges to the
t i f i i lif t th b t t
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statements of fundamental rights. The judges
are the mediators between the high
generalities of the constitutional text and
the messy detail of their application to
concrete problems. And the judges, in giving
body and substance to fundamental rights,will naturally be guided by what are thought
to be the requirements of a just society in
their own time. In so doing, they are not
performing a legislative function. They are
not doing work of repair by bringing an
obsolete text up to date. On the contrary,
they are applying the language of these
provisions of the Constitution according to
their true meaning. The text is a living
instrument when the terms in which it is
expressed, in their constitutional context,
invite and require periodic re-examination of
its application to contemporary life. Section
15(1) is a provision which asks to be
construed in this way. The best
interpretation of the section is that the
framers would not have intended the judges to
sanction punishments which were widely
regarded as cruel and inhuman in their owntime merely because they had not been so
regarded in the past.
29.All this is trite constitutional doctrine.
But equally trite is the proposition that not
all parts of a constitution allow themselves
to be judicially adapted to changes in
attitudes and society in the same way. Some
provisions of the Constitution are notexpressed in general or abstract terms which
invite judicial participation in giving them
practical content. They are concrete and
specific. For example, section 63 of the
Constitution says that the executive
authority of Barbados shall be vested in Her
Majesty the Queen. It would not be an
admissible interpretation for a court to say
that this meant that it should be vested in a
Head of State who was appointed or chosen in
whatever way best suited the spirit of the
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times; that the choice of Her Majesty in 1966
reflected the society of the immediate post-
colonial era and that having an hereditary
Head of State who lived in another country
was out of keeping with a modern Caribbean
democracy. All these things might be true andyet it would not be for the judges to give
effect to them by purporting to give an
updated interpretation to the Constitution.
The Constitution does not confer upon the
judges a vague and general power to modernise
it. The specific terms of the designation of
Her Majesty as the executive authority make
it clear that the power to make a change is
reserved to the people of Barbados, acting in
accordance with the procedure for
constitutional amendment. That is the
democratic way to bring a Constitution up to
date.
The savings provision
30. It follows that if there were no
exceptions to the supremacy of the
fundamental rights provisions of the
Constitution over all other laws, section 2
of the 1994 Act would be void to the extent
that it made the death penalty mandatory. But
section 2 of the 1994 Act is a consolidation
of a law which existed in 1966. For existing
laws, section 26 of the Constitution contains
an important exceptions to the supremacy of
its fundamental rights provisions.
26(1) Nothing contained in or done under
the authority of any written law shall be held to be
inconsistent with or in contravention of any provision of
sections 12 to 23 to the extent that the law in question (a) is a law (in this section referred
to as an existing law) that was
enacted or made before 30th November
1966 and has continued to be part of
the law of Barbados at all times since
that day;
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(b) repeals and re-enacts an existing
law without alteration; or
(c) alters an existing law and does not
thereby render that law inconsistent
with any provision of sections 12 to23 in a manner in which, or to an
extent to which, it was not previously
so inconsistent.
(2) In subsection (1)(c) the reference
to altering an existing law includes
references to repealing it and re-
enacting it with modifications or making
different provisions in lieu thereof, and
to modifying it; and in subsection (1)
written law includes any instrument
having the force of law and in this
subsection and subsection (1) references
to the repeal and re-enactment of an
existing law shall be construed
accordingly.
31.If one reads section 26 together with
section 1, it discloses a clearconstitutional policy. Section 1, which
applies to all laws past or future, states
the general proposition that the Constitution
is the supreme law and, in consequence, that
any law inconsistent with the Constitution is
to that extent to be void. Section 26
declares an exception to this general
proposition. No existing written law is to be
held to be inconsistent with sections 12 to23. Existing laws are to be immunised from
constitutional challenge on that ground. If
they cannot be held void, it follows that
they must be accepted as valid.
32.The wisdom of casting a blanket of
immunity from constitutional challenge over
the whole corpus of existing laws might be
debatable. Not all of the former British
colonies in the Caribbean thought it
necessary to do so. The framers of the
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Constitution of Barbados (and other
constitutions containing similar provisions)
may have adopted them because, as Lord Devlin
suggested in DPP v Nasralla [1967] 2 AC 238, 247-
248, they thought that the existing laws
already embodied the most perfect statementof fundamental rights and that no
inconsistency with sections 12 to 23 was
possible. (See also Lord Diplock in De
Freitas v Benny[1976] AC 239, 244). Against thisexplanation, however, it could be said that
if the framers were fully persuaded on the
point, they would not have thought section 26
necessary. A more likely explanation is, as
Lord Hope of Craighead says of a similarprovision in the Jamaican constitution in the
judgment of the Board in Lambert Watson v The
Queen, that
It was a reasonable working assumption,
in the interests of legal certainty and
to secure an orderly transfer of
legislative authority from the colonial
power to the newly independent
democracy.
33.It is however unnecessary to devote too
much time to speculating about the thought-
processes of the framers of the Constitution
because, whatever may have been their
reasons, they made themselves perfectly
clear. Existing laws were not to be held
inconsistent with sections 12 to 23 and
therefore could not be void for inconsistency
with the Constitution. Nor does the
Constitution itself contain any textual
warrant for the existence of a power of
modification falling short of a power to hold
an offending provision void.
The Order in Council
34.Mr Starmer claims to find such an
intermediate power of modification in section
4(1) of the Barbados Independence Order 1966
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SI No 1455, which brought the Constitution
into effect:
Subject to the provisions of this
section, the existing laws shall be
construed with such modifications,
adaptations, qualifications andexceptions as may be necessary to bring
them into conformity with the Barbados
Independence Act 1966 and this Order.
35.There is no dispute that this Order
includes the Constitution which was set out
in a schedule and brought into force by
section 3. So the appellant says that section
4(1) requires the modification or adaptationof all existing laws to secure their
conformity with sections 12 to 23. Mr Starmer
reconciles this power (or duty) with the
immunity conferred by section 26 by saying
that to modify is not to hold inconsistent.
All that section 26 prohibits is a judicial
declaration that an existing law is entirely
inconsistent with those provisions. If the
existing laws can be modified in a way which
leaves something standing, section 26 moults
no feather. On the other hand, if there are
linguistic or conceptual reasons why nothing
short of the total inconsistency of an
existing law will satisfy sections 12 to 23,
then the fundamental rights declared by those
sections are defeated and the existing law
remains valid.
36.This is an argument which does not appear
to have occurred to anyone until it surfacedas a fall-back argument deployed by counsel
in DPP v Mollison [2003] 2 AC 411, 417 and wasgiven the traditional epithet ingenious by
Lord Bingham of Cornhill. It was promoted to
ratio decidendi by the majority of the Board
in Roodal v The State [2004] 2 WLR 652. But, astheir Lordships said at the outset, it is (a)
irrational in its consequences (b) beyond the
powers conferred by the Act under which theOrder was made, and (c) inconsistent with its
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language and purpose. Their Lordships will
develop these three reasons in more detail.
(a) Irrationality
37.The purpose of the proposed power of
modification is said to be to bring existinglaws into conformity with the Constitution,
including sections 12 to 23. But securing
conformity with sections 12 to 23 stops short
at total rejection of an existing law,
however non-conforming.
38.Their Lordships find it hard to imagine
why the framers of the Constitution should
have wished to install such an arbitrarilyincomplete mechanism for securing conformity
between existing laws and sections 12 to 23.
That all existing laws should have to conform
to principles of fundamental rights would
have been understandable. That all existing
laws should be exempt is explicable. But that
the question should depend upon the mode of
expression or conceptual unity of the
particular law defies rational explanation.
It would immunise only those laws which for
linguistic or conceptual reasons could not be
brought into conformity by anything which
could be described as modification or
adaptation.
39.Suppose, for example, that a few years
before Independence in 1966 there had been a
public outcry against the number of
burglaries. Politicians claimed that theavailable punishments of imprisonment, fines
and community service were not sufficiently
deterrent. So Parliament passed the Burglary
Act 1962. It contained a single section:
Anyone convicted of burglary may be
sentenced to a whipping of not more than 10
lashes. (Compare Pinder v The Queen [2003] 1
AC 620.) After the Constitution with its
fundamental rights and freedoms had come intoforce, the Act would have been inconsistent
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with section 15(1). Flogging is nowadays a
cruel and unusual punishment. Even though the
Act conferred only a discretion, any exercise
of that discretion would be the infliction of
a cruel and unusual punishment. But section
26 would have made it impossible for a courtto hold that the Act was void. And Mr Starmer
would probably accept that the conciseness of
language and concept in such a law means that
it is incapable of modification. It is the
kind of example he gave to show that even on
his construction of the Order, section 26
could still have some work to do. Such a law
is either good or bad.If section 26 does notallow it to be held bad, it remains good. So
the Act would have remained valid.
40.But imagine that in 1964 there had been a
Burglary Consolidation Act, which repealed
and re-enacted all the previous laws about
burglary including the 1962 Act. Instead, a
section of the new Act provided: Anyone
convicted of burglary may be sentenced to (a)
imprisonment (b) a whipping of not more than
10 lashes (c) a fine (d) community service.Mr Starmers argument is that the
consolidation would have made all the
difference. It would now be possible to
modify the 1964 Act by deleting (b) a
whipping of not more than 10 lashes and
leaving everything else. It would be absurd
to have to declare the whole of the law of
burglary void just because it provided for
one punishment which was excessive. That isjust the kind of thing which a power of
modification is intended to prevent. So Mr
Starmer says that the power may be used to
excise the punishment of flogging even when
there can be no question of any part of the
law being invalidated.
41.Their Lordships do not accept that any
legislator in his right mind would intend the
application or disapplication of fundamental
human rights to turn upon such a distinction
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Barbados the power to decide whether any
existing law should be amended or repealed to
conform to sections 12 to 23. The delegates
to the London conference who agreed on the
Constitution would have been astonished to
find that by reason of a provisionsubsequently inserted into the Order in
Council, existing laws would survive
inconsistencies with those sections only if
they were sufficiently self-contained in
language and concept.
47.Mr Starmer emphasised the breadth of the
power of modification, which is well attested
in the authorities. It allows the court to
remould the old law in any way which is
necessary to preserve some part of its effect
consistently with conformity to the
constitution. But Mr Starmer seemed to think
that this was a point in his favour. On the
contrary, it is very much against him. A
broad power of modification is appropriate
when it forms part of the constitutional
scheme for ensuring that laws inconsistent
with the Constitution shall to the extent ofthe inconsistency, be void. In such a
scheme, there is a continuum of measures
which can be taken to produce conformity, in
which simply declaring the whole law to be
void is the limiting case. Short of total
inconsistency, there can be modification. But
a broad power of modification produces
absurdity when the court cannot declare the
law void. The more Mr Starmer emphasised thebreadth of the power of modification, the
more implausible became his analogy with a
rule of construction such as section 3(1) of
the United Kingdom Human Rights Act 1998.
48.The objection to Mr Starmers construction
is not to the breadth of the power of
modification but to the circumstances in
which he submits that the power may be used.
The power may be as broad as one pleases, but
its obvious purpose is to save existing laws
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from being declared wholly void; not to allow
the courts to modify laws which would
otherwise be valid. As Lord Hobhouse of
Woodborough said in Browne v The Queen[2000] 1
AC 45, 49 of a statutory proviso inconsistent with the constitution:
It is the duty of the court to decide
what modifications require to be made to
the offending provision in the proviso
and to give effect to its modified form,
not to strike down the proviso
altogether.
49.Thus the purpose of section 4(1) is to
ensure that so far as possible, substance
will prevail over form. The courts are
empowered and encouraged not to rejectprovisions to which there can be no
substantive objection merely because as a
matter of language and form they are bound up
with provisions inconsistent with the
Constitution. Instead, there is a broad power
to remould language and form to sever the
good from the bad. It is unnecessary to
discuss the extent of the power; it obviously
has substantive limits; for example when itpresents the court with choices which are
more appropriately made by the legislature.
But whatever the breadth of the power, it is
truly incidental or supplementary to the
Constitution because it is ancillary to the
supremacy of the Constitution over other law.
Its purpose is to enable the courts to
preserve the effect of existing laws as far
as it is possible to do so.
50.Thus in the burglary example mentioned
earlier, if there had been no section 26, the
1962 Act would have been declared void. If
there had been a consolidation Act, it would
have been modified to excise the punishment
of flogging. Whatever the form of the
legislation, the substantial result would
have been the same. Powers to modify and
adapt are ways of giving effect to thedeclaration in section 1 that laws
i i t t ith th C tit ti h ll t
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that extent - and only to that extent - be
void. But they make no sense in relation to
laws which would otherwise be valid.
(c) Language and purpose
51.Section 4(1) requires any modifications toexisting laws to be necessary to bring them
into conformity with the Barbados
Independence Act 1966 and this Order. The
part of the Order with which section 2 of the
1994 Act is said not to be in conformity is
section 15(1) of the Constitution annexed in
the Schedule. But this submission of lack of
conformity requires one temporarily to avert
ones eyes from section 26, which makes itclear that there is no possibility of lack of
conformity between existing laws and section
15(1). If the power of modification is to
apply, there must be lack of conformity not
just with one subsection of the Constitution
but with the Constitution as a whole. Mr
Starmer says that section 26 does not go so
far as to prevent there being lack of
conformity with the Constitution. All it does
is to preclude a court from holding that
there is an inconsistency between the 1994
Act and section 15(1). Until the moment at
which such a non-declaration is made, there
is a lack of conformity which can be
addressed by exercise of the power of
modification. Mr Starmer contrasts section 26
with what he calls a shut-out clause such
as section 3(1) of the 1962 Constitution of
Trinidad and Tobago, which said that thefundamental rights sections should not
apply in relation to any law in force at the
commencement of the Constitution. That, he
says, was altogether different.
52.Their Lordships do not accept these
refined linguistic distinctions. Section 26
has the side-note Saving of existing law
and section 3(1) of the 1962 Trinidad andTobago constitution has the side-note Saving
as to certain laws Likewise the 1976
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Trinidad and Tobago constitution includes
section 6(1) under the heading Exceptions
for existing laws and gives it the side note
Savings for existing law. All three
constitutions were intended to have an effect
which can be described in various ways, allof which come to the same thing. In the past
the Board has been inclined to regard them as
creating an irrebuttable presumption that the
existing laws were in accordance with the
fundamental rights protected by the
Constitution: see De Freitas v Benny[1976] AC
239, 244. Another way of putting the matter is to say that they
make existing laws immune from any form of challenge by
reference to sections 12 to 23. But that immunity is complete.
Principles of construction
53. Mr Starmer suggested, and the minority agree, that concerns
with rationality, ultra vires and the language and purpose of the
section were a rather pedantic and inhibited approach toconstitutional construction, deserving of condemnation as the
tabulated legalism fit for conveyances and charterparties. He said
that if his construction were adopted, effect would be given to the
international obligations of Barbados and the constitution would betreated as a living instrument and not left trapped in a time-warp.
54.Both the attractive force of international human rights law and
the living instrument principle have already been touched upon in
their proper places. Their Lordships repeat that they do not intend
to put in doubt the principle that if it is reasonably possible to give
domestic law a construction which will accord with international
law obligations, the courts will do so. But the construction of
section 4(1) for which Mr Starmer contends is unreasonable to thepoint of being perverse. There is no ambiguity aboutthe matter.
55.As for the living instrument principle,
it can have no more application to the
construction of sections 1 and 26 of the
Constitution and section 4(1) of the Order in
Council than to the provision that the
executive power shall be vested in Her
Majesty. The relevant provisions arecompletely specific. Section 26 says that
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(contrary to the general provisions of
section 1) certain specifically defined laws
(existing laws) and their replacements (as
defined) shall not be held inconsistent with
sections 12 to 23. It follows that they
cannot be void under section 1. And as theConstitution contains no provision apart from
section 1 which affects the validity or
requires the amendment of any law, it follows
that all existing laws are to be unaffected
by sections 12 to 23. In laying down this
rule, the Constitution employs no general
concepts which need or invite being given a
contemporary content by the courts. The
protected laws and the extent of their
immunity from challenge are stated in the
most concrete terms. It is in any case
difficult to address an argument that the law
should be updated and not left trapped in a
time-warp when the plain and obvious purpose
of section 26 is that the existing laws
should not be judicially updated by reference
to sections 12 to 23.
56.There is no supra-constitutional principleby which it is presumed that the provisions
of a constitution, even those concerned with
fundamental rights, must be capable of being
given an updated effect taking precedence
over all other laws. To make such an
assumption is to beg the very question at
issue in this case, which is whether the
Constitution left it to Parliament to decide
whether existing laws should be amended toconform to sections 12 to 23. The answer to
that question can be found only in the
Constitution itself and not in
generalisations about the nature of
constitutions or fundamental rights. Self-
evidently it is true that if one chooses to
construe the Order as imposing a duty to
modify existing laws to bring them into
conformity with sections 12 to 23, one will
construe the general concepts used by those
sections according to the living instrument
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principle in order to decide whether a lack
of conformity exists. But this is a
consequence of construing the Order as
imposing a duty to modify and not a reason
for adopting that construction.
57.As for the provision upon which the
appellant chiefly relies, namely section 4(1)
of the Order, it does not form part of the
Constitution at all. Nor does it invoke any
concept of liberty, fundamental rights or the
like which requires judicial exposition in
its application to concrete facts. It either
requires the courts to modify existing laws
to conform to sections 12 to 23 or it does
not. Whatever there may be to say in favour
of this proposition (and for the reasons
already given, their Lordships think there is
very little) it gains no support from the
principle of construction which treats
appropriate parts of the Constitution as a
living instrument. If it imposes such a
duty upon the courts now, it did so in 1966.
If it did not do so in 1966, there is no
principle of construction upon which it canhave come to do so now.
58.It must be borne in mind that although
this case is concerned with whether the law
providing the death penalty for murder should
be modified to conform to section 15(1) of
the Constitution - a provision which could
properly be regarded as now having a broader
content than would have been generallythought when it was enacted - the proposed
duty of modification requires all existing
laws to be modified to conform to sections
12 to 23. In other words, it laid all
existing laws open to immediate challenge for
lack of conformity with sections 12 to 23 (so
long as the challenge was not so radical as
to leave nothing of the old law behind),
whether or not there had been any change in
the content of the provisions of the
particular section which is said to produce
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the need for modification. Such a
construction plainly has nothing to do with
the living instrument principle.
59.The living instrument principle has its
reasons, its logic and its limitations. It isnot a magic ingredient which can be stirred
into a jurisprudential pot together with
international obligations, generous
construction and other such phrases,
sprinkled with a cherished aphorism or two
and brewed up into a potion which will make
the Constitution mean something which it
obviously does not. If that provokes
accusations of literalism, originalism and
similar heresies, their Lordships must bear
them as best they can.
Existing punishment
60.The respondent placed reliance upon
section 15(2) of the constitution:
Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention ofthis section to the extent that the law
in question authorises the infliction of
any punishment or the administration of
any treatment that was lawful in Barbados
immediately before 30th November 1966.
61.Their Lordships do not think that this
subsection has any relevance. It can have no
application to existing laws because they are
the subject-matter of the immunity against
challenge conferred by section 26. No further
provision is needed to preserve them. What
section 15(2) does is to legitimise the
imposition of the death penalty in future
legislation: compare Pinder v The Queen[2003]
1 AC 620. But section 15(2) says nothing aboutwhether it would be inconsistent with section
15(1) for the death penalty to be mandatory.
This was the point decided by the Board in
Regina v Hughes [2002] 2 AC 259 and their
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Lordships do not think it necessary to
rehearse the reasoning of Lord Rodger of
Earlsferry in that case.
Stare decisis
62.The conclusion which their Lordships havereached on section 4(1) of the Order in
Council is different from that which was
reached in Roodal v The State [2004] 2 WLR 652by a majority of the Board on the equivalent
provision in the statute which brought into
force the constitution of Trinidad and
Tobago. There are differences in the language
of the two constitutions and the two
modification sections but their Lordships donot think that they are material. Mr Starmer
urged the Board not to depart from the
earlier decision and ordinarily there would
be powerful arguments for not doing so. In
this appeal, however, their Lordships sit as
the final court of appeal for Barbados. The
issue is one of great public importance, not
only so far as it concerns the death penalty
but because the effect of the Roodal decision
was to lay open the whole of the pre-
independence law of Barbados to challenge for
lack of conformity with any of the provisions
of sections 12 to 23. A majority of the Board
at the first hearing of this appeal felt some
disquiet at the prospect of having to give a
ruling for Barbados which they felt to be
wrong simply out of conformity with the
earlier ruling for Trinidad and Tobago. For
these reasons, the appeal was directed to bereargued before an enlarged Board for the
specific purpose of deciding whether the
Roodal decision was correct. In these highly
exceptional circumstances, their Lordships
consider that as they have reached the
conclusion that Roodal was wrongly decided,
they should give effect to that conviction in
deciding this appeal. The consequences for
the law of Trinidad and Tobago will beconsidered in the opinion delivered in
Matthew v The State the appeal from that
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country which was heard together with this
one.
The Interpretation Act
63.Their Lordships now turn to two
alternative arguments advanced by Mr Starmer.The first was that, as a matter of domestic
law and independently of the Constitution,
the mandatory death penalty had already been
abolished by section 22(5) and (6) of the
Interpretation Act 1966:
(5) Where an enactment provides a
punishment for an offence against the
enactment, the offence shall be
punishable by a punishment not exceedingthat so provided.
(6) Where at the end of a section of any
enactment a fine, penalty or term of
imprisonment is set out, any
contravention of that section shall be an
offence against the enactment and shall
be punishable by a fine, penalty or term
of imprisonment not exceeding that so setout.
64.Their Lordships consider that this
submission is not seriously arguable. The
reasons are both technical and general. The
technical objections are that subsection (5)
does not apply because murder is not an
offence against the 1994 Act. It is an
offence at common law. Nor, for similar
reasons, does subsection (6). Murder is not a
contravention of section 2 of the 1994 Act
and is not therefore deemed to be an offence
against the Act. It is true that for the
purposes of certain other sections, murder is
treated as an offence against the Act. But
that is no reason why it should be treated as
a statutory offence for the purposes of
sections 22(5) and (6), which are
specifically concerned with theinterpretation of statutory offences.
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65.The more general reason is that an
Interpretation Act is intended to provide for
the interpretation of statutes (past and
future) and not their amendment. The evident
purpose of subsection (5) is to make itunnecessary for the draftsman each time to
use the words not exceeding and the purpose
of subsection (6) is to avoid the need for
him to say expressly that an act in
contravention of a statute shall be an
offence against the statute. Instead of
saying anyone who parks his car in a
restricted zone shall commit an offence
against this section and shall be liable on
conviction to a fine not exceeding $100 he
can achieve the same effect by saying anyone
who parks his car in a restricted zone shall
be liable to a fine of $100. That is typical
of the modest savings in verbiage which an
Interpretation Act is intended to achieve.
66.On the other hand, it is simply not
credible that the Interpretation Act managed
without anyone noticing to abolish themandatory death penalty for murder. As Lord
Rodger of Earlsferry said in Regina v Hughes
[2002] 2 AC 259, 272, if any such radical change in the law hadbeen intended, it is inconceivable that it would have been enacted
in anything other than clear and express words. Mr Starmer again
invoked the tug of international obligations and the always
speaking principle which is specifically enacted in section 31(1) of
the Interpretation Act:
Every enactment shall be construed asalways speaking and anything expressed in
the present tense shall be applied to the
circumstances as they occur, so that
effect may be given to each enactment
according to its true spirit, intent and
meaning.
67.But this is not legislation which refers
to some concept which has to accommodateitself to new circumstances. If the
I t t ti A t b li h d th d t
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death penalty, it did so in 1966. If it did
not, it was not because people in those days
did not know about the mandatory death
penalty. It was because no one would in the
context of the Act have thought of the death
penalty as the kind of penalty to which theAct was referring. And there is no reason why
anyone should since have come to a different
view about what the Act meant. As section
31(1) says, the Act must be given effect
according to its true spirit, intent and
meaning.
The separation of powers
68.Finally Mr Starmer submitted that themandatory death penalty combined with the
exercise of the constitutional power of
commutation on the advice of the Barbados
Privy Council infringed the principle of the
separation of powers. He said that the law
did not contemplate that everyone sentenced
to death would actually be executed. The
Privy Council in practice decided whether the
convicted murderer would live or die and was
therefore part of the sentencing process. But
this was illegitimate, because sentencing is
a judicial function and the Privy Council is
not part of the judiciary.
69.Their Lordships have already noted that in
Reyes v The Queen[2002] 2 AC 235 the executive nature of
the exercise of the power of commutation was a reason why it was
not regarded as justifying a mandatory death penalty in Belize. In
Barbados, on the other hand, the mandatory death penalty is, astheir Lordships have decided, preserved by section 26 of the
Constitution. And the exercise of the power of commutation in
death sentence cases is expressly codified in section 78. Both
mandatory sentence and executive clemency are in accordance with
the Constitution.
70. It follows that neither can be rejected on the ground that itinfringes the principle of the separation of powers. Although Mr
Blake QC submitted that it was a principle which overrode even the
terms of the Constitution itself, their Lordships regard this as anextravagant proposition. To say that a constitution is based upon
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the principle of the separation of powers is a pithy description of
how the constitution works. But different constitutions apply this
principle in their own ways and a court can concern itself only with
the actual constitution and not with what it thinks might have been
an ideal one. All that matters is whether the mandatory death
penalty and executive clemency are in accordance with theConstitution of Barbados. In their Lordships opinion, they are.
71.Their Lordships will therefore humbly advise Her Majesty that
the appeal ought to be dismissed.
______________
Dissenting judgment by Lord Bingham of Cornhil l,
Lord Nicholl s of Bi rkenhead, Lord Steynand
Lord Walker of Gestingthorpe
72.As in Matthew v The State [2004] UKPC 33,
heard before but in conjunction with the
present appeals, we have the misfortune to
dissent from the conclusions and reasoning of
a majority of the Board. Our reasons for
dissenting are, to a very considerable
extent, the same as those which led us to
dissent in Matthew. We hope it will not be
thought discourteous to the people or
government of Barbados, or to counsel who
ably argued this appeal, if we refer by
reference rather than repetition to such of
our reasoning in that case as we consider
applicable in this.
73.The appellants do not in this appeal
contend that it is contrary to the
Constitution of Barbados for judges to passsentence of death on those convicted of
murder if, having considered all relevant
circumstances pertaining to the offence and
the offender, they consider such sentence to
be just. The appellants challenge relates
not to imposition of the death penalty but
solely to mandatory imposition of the death
penalty, that is, the requirement that judges
must impose the death penalty in all cases ofmurder, irrespective of any considerations
pertaining to the offence or the offender
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which may serve to mitigate the seriousness
of the crime to some degree.
74.One distinction between the present case
and Matthewshould be noted at the outset. In
that case the State acknowledged that themandatory death sentence in Trinidad and
Tobago is a cruel and unusual treatment or
punishment and so, subject to any applicable
savings clause, contrary to the Constitution.
In the present case, Barbados does not
acknowledge that the mandatory death penalty
is inhuman or degrading punishment or other
treatment within the meaning of section
15(1) of the Constitution of Barbados. In
Reyes v The Queen [2002] UKPC 11, [2002] 2 AC
235, however, an appeal decided after the
Court of Appeal reserved judgment in the
present case, the Board unanimously held the
mandatory death penalty to be inhuman or
degrading punishment or other treatment. It
was not suggested in argument that that
decision was wrong, and no plausible reason
was given why the ratio of that decision
(although decided by the Board as the finalcourt of appeal of Belize) was inapplicable
to Barbados. The Board has unanimously
reached the same conclusion in Lambert Watson
v The Queen (The Attorney General
intervening) [2004] UKPC 34, an appeal heard
with the present appeals. It is in our
opinion clear that the mandatory death
penalty as imposed in Barbados amounts, as in
other jurisdictions, to inhuman or degradingpunishment or other treatment for all the
reasons given in Reyes.
75.In Matthew, attention was drawn to
similarities and differences between the 1962
and 1976 Constitutions of Trinidad and
Tobago. No such question arises here, since
Barbados has had one Constitution only, the
Constitution contained in the Barbados
Independence Order 1966 (S1 1966/1455) and
the 1966 Constitution scheduled to that
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Order. In the preamble to the Constitution
the people of Barbados proclaimed their
belief in the dignity of the human person,
their unshakeable faith in fundamental human
rights and freedoms and their belief in the
rule of law. Section 1 provided that theConstitution was to be the supreme law of
Barbados and that, subject to the provisions
of the Constitution, if any other law was
inconsistent with the Constitution, the
Constitution should prevail and the other law
should, to the extent of the inconsistency,
be void.
76.Chapter III of the Constitution, devoted
to protection of the fundamental rights and
freedoms of the individual, was based on a
model which had been adopted in Nigeria and
was directly inspired by the European
Convention on Human Rights. In this respect
it differed from the Canadian model earlier
followed in Trinidad and Tobago, where the
influence of the European Convention
(although present) was more indirect, and
broadly followed the model adopted inJamaica. The protection from inhuman
treatment was expressed in section 15:
(1) No person shall be subjected to
torture or to inhuman or degrading
punishment or other treatment.
(2) Nothing contained in or done under
the authority of any law shall be
held to be inconsistent with or incontravention of this section to the
extent that the law in question
authorises the infliction of any
punishment or the administration of
any treatment that was lawful in
Barbados immediately before 30th
November 1966.
It would seem that subsection (2) was
prompted by recognition that some penal
practices of the former colonial government,
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in particular corporal punishment, were
likely to be thought to offend the
prohibition in subsection (1). It is,
however, clear that section 15(2) does not
protect the mandatory aspect of the death
penalty: R v Hughes [2002] UKPC 12, [2002] 2AC 259, paragraphs 47-48.
77.Section 24 of the Constitution (comparable
with section 14 of the 1976 Constitution of
Trinidad and Tobago) gave the High Court
power to enforce the human rights provisions
of the Constitution. Section 26 (comparable
with section 6 of the 1976 Constitution of
Trinidad and Tobago) gave the High Court
power to enforce the human rights provisions
of the Constitution. Section 26 (comparable
with section 6 of the 1976 Constitution of
Trinidad and Tobago) read as follows:
26.(1) Nothing contained in or done
under the authority of any written law
shall be held to be inconsistent with
or in contravention of any provision of
sections 12 to 23 to the extent that
the law in question -
(a) is a law (in this section referred
to as an existing law) that was
enacted or made before 30thNovember
1966 and has continued to be part of
the law of Barbados at all times
since that day;
(b) repeals and re-enacts an existinglaw without alteration; or
(c) alters an existing law and does not
thereby render that law inconsistent
with any provision of sections 12 to
23 in a manner in which, or to an
extent to which, it was not
previously so inconsistent.
(2) In subsection (1) (c) the reference
to altering an existing law includes
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references to repealing it and re-
enacting it with modifications or
making different provisions in lieu
thereof, and to modifying it; and in
subsection (1) written law includes
any instrument having the force of lawand in this subsection and subsection
(1) references to the repeal and re-
enactment of an existing law shall be
construed accordingly.
Reference must lastly be made to section 4(1)
and (6) of the Barbados Independence Order
(corresponding to section 5 of the Trinidad
and Tobago Act):
4.(1) Subject to the provisions of
this section, the existing laws shall
be construed with such modifications,
adaptations, qualifications and
exceptions as may be necessary to bring
them into conformity with the Barbados
Independence Act 1966 and this Order
(6) In this section existing law
means any law having effect as part of
the law of Barbados immediately before
the appointed day (including any law
made before the appointed day and
coming into operation on or after that
day).
78.The majority conclude that since section
26(1) precludes the holding of anything
contained in or done under the authority ofany existing law to be inconsistent with the
human rights sections of the Constitution,
section 1 of the Constitution is, in relation
to those sections, effectively ousted and the
occasion for exercising the power to modify
can, accordingly, never arise. This is no
doubt a possible reading of these provisions.
But it is not the only possible reading. Nor,
in our opinion, is it the preferable reading.It puts a narrow and over-literal
construction on the words used gives little
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or no weight to the principles which should
guide the approach to interpretation of
constitutional provisions, gives little or no
weight to the human rights guarantees which
the people of Barbados intended to embed in
their Constitution and puts Barbados inflagrant breach of its international
obligations. We make general reference to
paragraphs 42-46 and 50-55 of our dissenting
opinion in Matthew.
79.Section 26(1) of the Constitution
prohibits a court from holding any provision
of an existing law to be inconsistent with
sections 12 to 23 of the Constitution. Were
it free to do so, the consequence would
necessarily be, under section 1 of the
Constitution, that the provision would be
void. Thus if it were to be contended, for
example, that imposition of the death penalty
under an existing law in any case (even if
discretionary) was inconsistent with section
12 or 15 of the Constitution, the court could
not accede to that contention. To do so would
be to avoid the existing law, which cannot bedone. But that is not what the appellants
seek, nor what (in our opinion) they are
entitled to seek. They seek not the avoidance
or abrogation of an existing law but its
construction with such modifications,
adaptations, qualifications and exceptions as
may be necessary to bring it into conformity
with the Constitution. To modify section 2 of
the Offences Against the Person Act 1994 sothat it reads Any person convicted of murder
may be sentenced to, and suffer, death is
not to emasculate, avoid or render nugatory
that section. It does not preclude imposition
of the death penalty in cases where a judge,
seised of all the facts, considers such
penalty to be just and appropriate. But it is
to preclude the infliction of what is now
recognised to be inhuman or degrading
punishment or other treatment. It is of
course clear, as the authorities cited in
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paragraphs 50-53 of our opinion in Matthew
show, that there are limits to the power of
modification, but the modification we favour
falls well within these limits and is one
which has been made on previous occasions.
80.The construction of these provisions which
we favour is in our opinion fortified by the
recognition, in section 26(2) of the
Constitution, that an existing law may have
been modified, which can only refer to
exercise of the duty under section 4 of the
Order. There is also a clear contrast in the
drafting of the human rights provisions of
the Constitution between shall not apply
(as in section 23(3) and (5)) and Nothing
... shall be held to be inconsistent with or
in contravention of ... (as in section 23(4)
and (6)). The former provision precludes any
review of conformity and hence any exercise
of the power to modify; the latter does not.
Unless the effect of these alternative
formulae leads to a difference of meaning,
the draftsman would not have used different
expressions. It is a cardinal rule ofdrafting to use the same expression to mean
the same thing and different expressions to
mean different things.
81.Since we consider the relevant provisions
of the Order and the Constitution to be
capable of more than one meaning, we think it
appropriate to have regard to the
international obligations which Barbados hasundertaken.
(1) When Barbados became independent, the
European Convention on Human Rights ceased
(after thirteen years) to apply to it. But
it very promptly became a member of the
United Nations, and so bound by the
Universal Declaration of Human Rights. On
5 January 1973 it acceded to the
International Covenant on Civil and
Political Rights and (on the same date) to
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the Optional Protocol, from neither of
which has it withdrawn.
(2) Barbados became a member of the
Organisation of American States, and so
bound by the American Declaration of theRights and Duties of Man in November 1967.
In June 1978 it signed and in November
1978 it ratified the American Convention
on Human Rights, and in June 2000 it
accepted the compulsory jurisdiction of
the Inter-American Court of Human Rights.
It has not withdrawn from these
obligations.
(3) As recorded in paragraph 58 of our opinion
in Matthew, the jurisprudence of the Human
Rights Committee, the Inter-American
Commission and the Inter-American Court
has been wholly consistent in holding the
mandatory death penalty to be inconsistent
with the prohibition of cruel, inhuman or
degrading treatment or punishment. Nothing
turns on minor differences of wording
between one instrument or another. Theappellants submitted that No
international human rights tribunal
anywhere in the world has ever found a
mandatory death penalty regime compatible
with international human rights norms,
and this assertion has not been
contradicted. It is true that no
application against Barbados has, to our
knowledge, been made to any of thesebodies, perhaps because the execution of
those condemned to death has, as we
understand, been exceptional. But no
convincing reason has been given why
punishment or treatment which is inhuman,
degrading or unusual elsewhere should not
have that character in Barbados.
(4) In written submissions to the Inter-
American Commission on Human Rights for a
hearing in October 2003, the State of
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Barbados insisted, we do not doubt
sincerely, on its respect for human rights
and international obligations. It
described itself (page 7) as unique
amongst Commonwealth Caribbean countries
in its acceptance and promotion of Inter-American human rights obligations. It
continued (page 8):
Barbados recognises and values the
binding international legal obligations
it has accepted under international and
regional treaties, including those of the
Inter-American system. It affirms its
obligations to uphold its representative
democratic system as well as to respect
the fundamental rights of the
individual.
At page 14 it stated:
Barbados seeks to uphold all of the
international legal obligations it has
accepted under the Inter-American system.
However in doing so, it must balance its
obligations to uphold democratic
constitutional processes, on the one
hand, and its obligations related to
certain human rights instruments on the
other.
The context of these submissions was an
amendment recently made to the Constitution
of Barbados to give express constitutional
protection to the mandatory death penalty.The Commission has sought an advisory opinion
from the Inter-American Court, and to that
extent the matter remains open. But the
Commission, in a note of 17 March 2004 to the
Government of Barbados, has made clear its
opinion:
The Commission has considered the oral
arguments made on behalf of Your
Excellencys government during thehearing held on October 20, 2003, and has
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reviewed the written submissions provided
by your government in support of those
arguments. After considering the matter
during its 119th Regular Period of
Sessions, the Commission has remained of
the view that the mandatory imposition ofthe death penalty is incompatible with
the protections enshrined under the
Inter-American human rights instruments,
for the reasons set out in its numerous
decisions adopted on this issue. In
reaching this conclusion, the Commission
has noted the submissions of Your
Excellencys government concerning the
existence under Barbadian law of
exceptions, defenses and other
circumstances that prevent the imposition
of capital punishment, statutory
exceptions that allow the avoidance of
capital punishment, and the availability
of the mercy prerogative of the Privy
Council to individuals who have been
sentenced to death. It is apparent from
the numerous decisions of the Commission
on this matter, however, as well as fromthe judgment of the Inter-American Court
in the Case of Hilaire, Constantine and
Benjamin et al, that the existence of
such provisions and procedures does not
alleviate the requirement that the death
penalty only be imposed after a judicial
hearing where the sentence is not
mandated in advance and where all
mitigating factors may be presented andtaken into account by the judicial
authority in determining whether death is
the appropriate punishment.
Accordingly, the Commission maintains the
observations contained in its note of
January 21, 2003, as well as its
recommendation pursuant to Article 18(b)
of the Commissions Statute that Your
Excellencys government reconsider its
amendment to the Constitution of Barbados
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relating to the mandatory death penalty
in light of the protections, standards
and jurisprudence of the Inter-American
human rights system.
While the matter now rests with the Inter-American Court, which alone can
authoritatively interpret the Convention, we
think it most unlikely that the Court will
reach a decision different in any significant
way from its earlier decisions.
(5) If, as we conclude, an interpretation of
the Constitution is open to the Board
which will be consistent with the
international obligations of Barbados and
not inconsistent with them, such
interpretation should be adopted.
82. Performing the duty imposed on the courts by section 4 of theIndependence Order, we would modify section 2 of the Offences
Against the Person Act 1994 by substituting may for shall. We
would accordingly allow these appeals and remit the cases to the
Supreme Court in order that that court, having heard any relevant
submissions and evidence, may impose a just and appropriatesentence in each case.
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